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Don't touch my car. Image via Wikipedia

U.S. Supreme Court Justice Antonin Scalia cobbled together a majority to support the idea police officers conducted an illegal "search" by attaching a GPS device to the car of nightclub owner Antoine Jones.

But in doing so, Scalia created an odd opposing alliance of conservative Justice Samuel Alito and liberals Ginsberg, Breyer and Kagan, who agreed with the outcome but not Scalia's reasoning. And by citing concepts of 18th century property law to support the idea that attaching the device was unconstitutional, Scalia put off for another day nettlesome questions about how much information police can assemble about a citizen before they've violated the Fourth Amendment prohibition on "unreasonable searches and seizures."

From the beginning, U.S. vs. Jones raised tricky questions about whether an illegal search involves the physical act of invading someone's person, house, papers, and effects, as it says in the Constitution, or the fuzzier idea captured in the 1967 decision Katz vs. U.S. , which held it was illegal to attach an eavesdropping device to the outside of a phone booth. That decision added the "reasonable expectation of privacy" to the Fourth Amendment.

Lawyers for Jones, along with supporters like the ACLU argued GPS tracking violated the Katz doctrine because even if the device was attached to the outside of his car and tracked his movements in the public sphere, it allowed police to assemble a picture that would have been otherwise unfeasible with human agents. In an age where people post status updates on Facebook and carry cellular phones with GPS devices, the argument goes, it is unsafe to allow the government to Hoover up all that data and create a picture of someone's movements or habits that would otherwise be difficult or impossible to obtain.

The D.C. Circuit followed that reasoning in ruling the warrentless search illegal. But Scalia said it was unnecessary to go that far. The simple act of attaching the battery-powered device to Jones's car was a violation of his 18th-century right to be secure in his property, Scalia wrote:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

Scalia cited a bizarre precedent to support the idea that any trespass is a "search": In Soldal v. Cook County the court held that hauling a person's entire trailer home off the lot wasn't a search because police returned the unit, without going into it, after the owner protested.Scalia also cited cases where drug dealers took possession of items that had tracking devices already installed in them, noting that the police hadn't invaded the property while it belonged to the suspects, only before it came into their possession.

Sotomayor grudgingly signed off on the majority opinion, noting she supports the firm line Scalia took on property but doesn't want to diminish the other troubling aspects of GPS tracking. "With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed tracking devices or GPS-enabled smartphones," she wrote. How they would compare to the beeper-equipped drug supplies is a question for another day, apparently.

Alito, joined by the court's liberals, wrote a concurrence that rejected Scalia's 18t-century reasoning as unworkable. ("Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?" he asked.

The real question is whether there are limits on how much publicly available information the government can collect before it needs a warrant to go further, Alito said. "In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical," he wrote. But in an era where the government can access all manner of electronic signals, and store them for future use, people are no longer secure in their movements.

The idea that citizens are protected because police can't physically attach a device to property -- the 18th-century concept of "trespass to chattles" -- ignores the many new devices that come pre-installed, he added.

Suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels?

Andrew Pincus of Mayer Brown's appellate group in Washington said the decision was "a significant rebuke to the government" because all of the justices rejected the government's argument that GPS surveillance doesn't trigger trigger Fourth Amendment scrutiny. And a majority held that GPS surveillance probably requires a warrant, just that the condition wasn't triggered here because the police had already violated Jones's rights by invading his property.

He also said the court clearly sent a signal to Congress that a federal law is needed to clarify when and how the government can conduct GPS surveillance. Until then the best the courts can do is issue rulings based on the facts before them.